The recent flap over FBI Director’s Jim Comey’s possible efforts to influence the election against Hillary Clinton was fascinating. I watched his press conference and read the print coverage with great interest. People were shocked—shocked—that the head of the FBI may be less than fair and that a press conference may be held with less-than-pure intentions.

Anyone who defends corporate executives was not shocked. We know well that DOJ and the FBI use the press to their advantage. Cases may be formally won in a court of law, but the first punches are thrown in the media.

I have written before about how government investigations can destroy an executive’s reputation forever, even when there is no indictment or finding of guilt. The Department of Justice exercises such incredible power that I can’t understand why it feels the need to advertise its wins, like it’s selling used cars and hoping for more business.

But feel the need it does. How else to explain why DOJ holds press conferences and issues press releases to brag about indictments—but is conspicuously silent when it loses at trial, or an indictment is dismissed, or charges are never brought?

There’s no press conference then,no public forum where DOJ announces with equal fervor that the defendant was not guilty of anything. There’s not even a press release issued to announce the acquittal. The DOJ website keeps on file the press release announcing the indictment, though.

When someone searches the defendant’s name five years down the road, Google will quickly find DOJ’s announcement of the indictment – in the most damning terms possible – but no DOJ announcement of vindication.

This multi-part series is going to examine this problem in more detail–using some high-profile cases as examples–and explore some of the ways defense lawyers are fighting back.

The Sovereign District of New York

It’s well known among white collar criminal defense lawyers that no part of DOJ is more aggressive in its use of the media to tout its “successes” than the United States Attorney’s Office for the Southern District of New York. It’s so powerful that some call it the “Sovereign District of New York.”

To be fair, the prosecutors I’ve dealt with personally in that office have been aggressive, but fair. They work hard and are devoted to their jobs. They are also smart as hell. But the folks at that top sure do love the media.

The two cases I’m going to examine are both from the SDNY.

In the prosecution of New York State Assembly Speaker Sheldon Silver, the defense filed a motion to dismiss the charges based on the government’s improper extrajudicial statements. The motion was directed at U.S. Attorney Preet Bharara based on his comments during a press conference on Mr. Silver’s arrest. The motion was ultimately unsuccessful, but it offers a helpful road map for future motions.

In the insider trading investigation into Level Global Investors, the government executed a search warrant against its founder David Ganek. Ultimately, however, the government never brought any charges against him. In the intervening period, however, the negative publicity from the investigation led to the collapse of Level Global. He filed a Bivens civil complaint against the AUSAs and FBI agents involved in the search warrant, contending that they deliberately included false statements in the affidavit in support of it. The complaint survived a motion to dismiss and is now on appeal to the Second Circuit.

The Ethical Rules

There is an ethical rule governing when prosecutors should make public statements about a case. The ABA’s Model Rule 3.8 is called “Special Responsibilities of a Prosecutor.” One special responsibility is that a prosecutor shall,

except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused . . .

Other states have similar rules. In the District of Columbia (Motto: Not a State. Yet.), for example, the rule is similar:

[Rule 3.8(f):] Except for statements which are necessary to inform the public of the nature and extent of the prosecutor’s action and which serve a legitimate law enforcement purpose, make extrajudicial comments which serve to heighten condemnation of the accused.

The comments to Rule 3.8 in the District of Columbia go even further, suggesting that press conferences are frowned upon, though it stops short of prohibiting them entirely. A press conference would be permission if it doesn’t “unnecessarily heighten condemnation of the accused.”

In the context of a criminal prosecution, pretrial publicity can present the further problem of giving the public the incorrect impression that the accused is guilty before having been proven guilty through the due processes of the law. It is unavoidable, of course, that the publication of an indictment may itself have severe consequences for an accused. What is avoidable, however, is extrajudicial comment by a prosecutor that serves unnecessarily to heighten public condemnation of the accused without a legitimate law enforcement purpose before the criminal process has taken its course. When that occurs, even if the ultimate trial is not prejudiced, the accused may be subjected to unfair and unnecessary condemnation before the trial takes place. Accordingly, a prosecutor should use special care to avoid publicity, such as through televised press conferences, which would unnecessarily heighten condemnation of the accused.

Other states like Maryland and Massachusetts have similar rules as the District of Columbia. New York doesn’t have a similar rule, though it does have a general rule about litigants not using the media improperly.

The U.S. Attorney’s Manual on “Media Relations”

The USAM does have a section about how to handle “media relations,” Section 1.7000. It starts out by noting the necessary balancing of interests:

These guidelines recognize three principal interests that must be balanced: the right of the public to know; an individual’s right to a fair trial; and, the government’s ability to effectively enforce the administration of justice.

Section 1.7-401 provides guidelines for press releases. They should be used only for “the most significant and newsworthy actions, or if a particularly important deterrent or law enforcement purpose would be served.” In fact, “[p]rudence and caution should be exercised in the conduct of any press conference or other media contact.”

Press conferences are appropriate before indictment when

1) the heinous or extraordinary nature of the crime requires public reassurance that the matter is being promptly and properly handled by the appropriate authority; 2) the community needs to be told of an imminent threat to public safety; or 3) a request for public assistance or information is vital.

None of these seem particularly compelling in any white-collar matter.

Key for this series is the caution that “[p]articular care must be taken to avoid any statement or presentation that would prejudice the fairness of any subsequent legal proceeding.”

What I’m Not Criticizing

To be clear, this series is not meant to be a criticism of the line attorneys. Line attorneys are not making decisions about when to hold press conferences or issue press releases, though they certainly weigh in on the substance of the press releases.

This is not a criticism of DOJ’s use of the media to announce findings of guilt or a plea deal. Educating the public about successful prosecutions has an important deterrent effect. It’s not my favorite practice—particularly when it’s my clients being discussed—but that’s at least a fair use of public statements.

This is a criticism of DOJ practice to use the media to announce one side of the story, without giving fair attention to the other side of it. It is a criticism that DOJ uses the media as an advertising tool, and allows its senior officials to be quoted in the press, when it serves a minimal purpose other than to intimidate a defendant.

So, stick with me through a few posts as I explore how defense lawyers are fighting back against this policy, one case at a time. If you have more examples to add, let me know. Creating a record of how lawyers can fight is a powerful tool for all of us.

Keep an eye out for Part II (likely after the new year; I’m taking a little break for the holidays) about the Silver case.